Stripper Bingo at the Supreme Court
The ordinance under scrutiny in the U.S. Supreme Court this morning is a piece of anti-naked-dancing legislation coming out of Erie, Pa.: City of Erie vs. Pap’s A.M., Kandyland. Because the ordinance in question is principally concerned with such things as: “nipples, genitals, pubic hair, anal regions and buttocks,” I immediately array these words along the top of my notebook. I then crayon the names of all nine Supreme Court justices down a Y axis and presto! Justice Bingo. Points to the first justice to say “nipple.” And if Justice Thomas says “pubic hair,” players must stand and shout “Bingo!”–risking lifetime expulsion from the highest court in the land, but worth it, I think.
You may play along at home.
The Supreme Court decided its G-string/pasties case in 1991 in Barnes vs. Glen Theatre, when an Indiana public-indecency statute was challenged on First Amendment grounds by two strippers and two girly bars. In Barnes, the court ruled in a fractious 5-4 plurality opinion that the Indiana statute requiring exotic dancers to wear G-strings and “pasties” (I gather pasties are some sort of nipple-beret) was constitutionally permissible. The problem with the Barnes opinion was that no five justices could agree on why the statute was constitutional, and drafted a Frankensteinian opinion comprising four separate opinions, with concurrences from the dissenters and dissents from the plurality.
After Barnes, depending on whose opinion you read, a city’s effort to suppress nude dancing is either a content-neutral regulation of morality (Rehnquist, O’Connor, Kennedy); a content-neutral regulation justified by dangerous “secondary effects” of nude dancing–such as prostitution and sexual assault (Souter); or an impermissible content-based suppression of communicative speech (White, Marshall, Blackmun, Stevens). And Justice Scalia, who joined the majority in upholding the statute, wrote a separate concurrence urging that nude dancing does not constitute “speech” at all and thus warrants no constitutional protection.
You may not care a whit about any of this, but you might if you were a stripper. Or the Sixth Circuit, who–in trying to winnow out a distinct majority holding in Barnes–likened it to “reading tea leaves.” And so the Pennsylvania Supreme Court, when faced with an ordinance remarkably similar to the one in Indiana, but with no interest in persecuting innocent strippers, elected to upend the teacup and go home. The Pennsylvania court, calling the Barnes decision “hopelessly fragmented” in five different ways, thus ignored the majority/plurality altogether and applied the law as laid out by Justice White in the dissent and found the Erie naked law unconstitutional.
The U.S. Supreme Court took the Pap’s case despite the fact that the nudie bar filed a motion to dismiss based on the fact that the 70-year-old owner had sold the business, rendering the case moot. Nothing doing, the Supremes voted to hear Pap’s anyway–ostensibly to clear up the mess after Barnes into which lower courts are slippy-sliding all over the land.
This is why it’s a bit surprising when Justice Scalia’s first question to Gregory Karle, the city solicitor from Erie, is why isn’t this case moot? Karle explains that although Kandyland has been sold, the corporation is still active and may just resume business any day now (also, maybe it’s a little chilly for strippers in Erie in the wintertime). The court chews on this a while and Justice Scalia actually does a pretty creditable impression of a 70-year-old nudie-bar operator crowing: “I’m getting out of the rust belt and moving to Florida!” When it begins to look as if none of the justices can recall why this case isn’t void for mootness, Justice Ginsberg supplies the possible explanation that Kandyland’s operator closed the place down after his crushing victory in the Pennsylvania Supreme Court precisely to stave off further scrutiny in the Supreme Court. Karle agrees enthusiastically.
First Amendment Law for Cocktail Parties holds that the state can regulate some speech and expressive conduct if it does so in a “content-neutral” fashion. That means that if Kenosha wants to prohibit women from dancing naked, it should draft legislation prohibiting women from also being naked–at least in public. After Barnes, cities can’t suppress erotic dancing just because they don’t like the erotic message of the dancers. But they can prohibit all public nudity–from Aurora Borealis in the Kage at Kandyland, to me on the Mall in Washington, D.C. (Or, as Dr. Seuss would say it: “Hooters are hooters no matter how small …”)
The problem with the Erie ordinance is that it claims to be a content-neutral prohibition on all public nudity but expressly says in its preamble that it was enacted “for the purpose of limiting a recent increase in live nude entertainment.” Note to ordinance drafters: It’s generally a bad idea to draft your content-neutral legislation in such a way as to persecute only strippers.
The other problem, picked up by Justice Souter at oral argument today, is that the Erie naked law was not applied to prosecute the naked performers in a performance of Equus. Oh, and Karle indicated at the trial court that it would not be used to prosecute performers in productions such as Hair, Oh! Calcutta!, or Equus. When questioned on this point by Justice Souter, Karle explains enthusiastically that he was not telling the truth about that at the trial court.
Justice Scalia, who is now doing a better job than Karle of answering questions put to Karle, offers a possible reason to regulate strippers but not Hair. Karle looks relieved. Scalia also does a nice job of convincing the court–when Karle cannot–that just because the trigger for the ordinance was the targeting of nude dancing only, the law itself is neutral on its face. Karle looks relieved.
John Weston, representing the nudie bar, does a breathtaking job of answering the questions Karle couldn’t answer, without Scalia’s intercession. Nevertheless, Weston has a tough time explaining why the case isn’t moot, since he is the one who urged the court to dismiss it on those grounds in the first place. The gist of his answer–“Because you say it isn’t moot”–is masterful.
This brings us to Scalia’s point from Barnes–not addressed today–about whether naked dancing is “expressive conduct” worthy of First Amendment protection. Not that I plan to make it a practice to agree with Scalia on stuff, but I read his dissent in Barnes with grudging admiration. My own feeling is that writhing around topless on the lap of a sweaty guy in an acrylic sweater is no more expressive of an “erotic message” than a prostitute’s hour with her John is expressive of a “romantic” one. If the strippers’ lobby has some eloquent defense on this issue, however, I am keeping an open mind.
The question the Supreme Court was meant to reach in Pap’s was: What do lower courts do with an impenetrable plurality opinion that can not be applied consistently? The court cannot possibly want to encourage Pennsylvania’s insolent shunting aside of its holding. But based on oral argument today, I don’t think the court plans to rewrite Barnes. Too bad, that. Hockey games go into overtime when tied, and hung juries are chased back into the jury room to try again to come up with a majority. Ties suck. The Supreme Court should definitely clear this one up, if for no other reason than to allow the owner of Kandyland to retire to Florida in peace.
